Digest: A judge of the drug court may not preside over a defendant’s
participation in the drug treatment court program, where the judge’s
son represented defendant in the underlying criminal case, even if the
son’s involvement ended at the plea and sentencing stage.

Rule:22 NYCRR 100.3(E)(1)(e), 100.3(F); Opinion 01-07 (Vol. XIX).

Opinion:

A drug court judge asks whether recusal is necessary in the case of a - now
self-represented - defendant’s participation in the drug treatment court program,
where the judge’s son represented the defendant in the underlying criminal case, and
whose involvement ended at the plea and sentencing of the defendant to the drug
court program.

Section 100.3(E)(1) of the Rules Governing Judicial Conduct provides that a
judge shall disqualify himself or herself in a proceeding in which the judge’s
impartiality might reasonably be questioned. Such an instance is illustrated by
subsection (e), in which “the judge knows that the judge or the judge’s spouse, or a
person known by the judge to be within the fourth degree of relationship to either of
them, or the spouse of such person, is acting as a lawyer in the proceeding.”
Notwithstanding the fact that the judge’s son is no longer acting as an attorney in the
proceeding, the situation is such that the judge’s impartiality may be questioned
because of the familial relationship and, in our opinion, recusal should be exercised.
Furthermore, we note that the defendant is now appearing pro se. Under such
circumstances, it is our view that, even if the judge feels that he/she can be
impartial, it would be inappropriate to impose upon a pro se defendant the burden of
determining whether to consent to the judge’s continued participation under the
remittal procedures of section 100.3(F). Thus, remittal of disqualification pursuant
section 100.3(F) should not be available in this situation. See Opinion 01-07 (Vol.
XIX).